Judgment:
K.K. Lahoti, J.
1. Petitioner has invoked extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India for issuance of following directions against the respondents: -
'(i) That the direction to respondent No. 1 is needful to petitioner be appeared in the annual examination as a regular student as well as also direction to enter into the practical examination in the interest of justice. .
(ii) That the respondent No. 2 principal of said school liable to be punished from the illegal action which has been committed with the petitioner as per this action of the principal sessions of petitioner being spoiled therefore he is also liable to be punished.
(iii) That the order of respondent No. 1 dated 24-1 -2005 liable to be quashed in the interest of justice 'Annexure P-4'.
(iv) That the petitioner is entitled to get the compensation for the illegal act of respondents.
(v) That the petitioner's father is Govt. servant and he is a teacher therefore authority is given threat for withdrawal of earlier case in the forum as well as warning for not filing the writ therefore protective order in favour of his father is required.
Any other relief deemed fit and proper may also be granted.'
2. Facts in brief necessary for the decision of the case are that the petitioner was a regular student of respondent No. 2 in the year 2003-04. He appeared in the examination successfully achieved 256 marks out of 450 marks and was declared passed in second division. Petitioner who was not satisfied with the performance and wanted to improve his grade sought re-admission in Higher Secondary in respondent No. 2 school. Respondent No. 2 though permitted the petitioner to attend the classes but had not granted status of regular student. Petitioner aggrieved by the action of the respondent No. 2 filed a complaint before the District Consumer Redressal Forum, Mandla which was registered as Case No. 45/2004 and decided on 9-11-2004. The District Consumer Forum allowed the application and directed the respondent No. 2 to include the name of the petitioner as a regular student and to take appropriate steps in this regard. Thereafter, respondent No. 2 recommended the matter of petitioner to respondent No. 1, but the respondent No. 1 by letter dated 24-1-2005 Annexure P-4 turned down the request. Respondent No. 1 referred that the Board was not a party before the District Consumer forum nor the District Consumer Forum has jurisdiction on the examination system of the Board. Thereafter, petitioner has filed this petition for the aforesaid reliefs.
3. Respondent No. 2 submitted that the petitioner sought admission in the Higher Secondary and deposited requisite fees of a regular student. The matter was placed before the Managing Committee which took a decision that no regular admission will be given for improvement of the marks. Copy of the decision dated 22-6-2004 is Annexure R-2/1,. .As per the decision of the Managing Committee, petitioner was not entitled for admission as a regular student and was only entitled for permission of sitting in the classroom for studies. Though the petitioner insisted for regular student but as it was not possible, so the prayer was turned down. Petitioner was duly informed in this regard by letter dated 4-8-2004 (Annexure R-2/2). Last date for getting admission as a regular student was 12-8-2004 and the petitioner was well informed within time in this regard about the decision of the Managing Committee. Petitioner approached to the District Consumer Forum and the matter was decided by the Forum by order dated 9-11-2004. Last date for admission as regular student had already expired on 12-8-2004 and the list of regular student was sent to the respondent No. 1, hence the respondent No. 2 wrote a letter to respondent No. 1 informing the decision of the District Consumer Forum, Mandla by Annexure R-2/3. Respondent No. 1 was also informed by the Collector, Mandla who is ex-officio Chairman of the Managing Committee of the school and also by the District Education Officer, Mandla by letters Annexures R-2/4 and R-2/5. On receiving aforesaid letters, respondent No. 1 informed the petitioner as well respondent No. 2 that regular admission to the petitioner is not possible. Contending aforesaid, it is submitted by the respondent No. 2 that the petitioner has rightly denied admission as a regular student and the petition may be dismissed.
4. Respondent No. 1 also opposed the petition by filing reply. In nut shell respondent No. 1 raised following pleas :-
(i) That, petitioner was not granted regular admission and was permitted to sit in the class-room and the respondent No. 2 has deprived the petitioner for regular admission in the institution.
(ii) That, Board of Secondary Education was not a party before the District consumer forum which decided the case on 9-11-2004, and the order passed by the District Consumer Forum is not binding on respondent No. 1.
(iii) That, the admission and conduct of examination are governed by the regulations made by the Board and the instructions issued thereunder. High Court has also issued directions for fixing date of admission for regular student as 31st July and to forward the list by the concerned school to the Board before 12th of August. The last date of submitting of examination form as regular student was 30th September.
(iv) That, regular student requires minimum attendance of 75% as per Regulations of the Board. This attendance has to be certified by the Principal as per record and in absence of required attendance, student is not entitled to appear in the examination.
(v) That, petitioner's name was not included by the respondent No. 2 in the list of regular students nor it was sent with the list of admitted students to the Board before the due date.
(vi) That, petitioner filled up his form as private student to appear in the examination.
(vii) That, the decision of the District Consumer Forum is beyond its jurisdiction and has been passed in contravention of statutory Regulations of the Board and instructions issued thereunder, and is not binding on respondent No. 1.
5. The learned Counsel appearing for petitioner submitted :-
(a) That petitioner is not at fault. As per instruction of the Board Annexure P-7, petitioner was entitled for regular admission for improvement of the division. Though the respondent No. 2 granted sitting permission to the petitioner but charged entire fees of regular student. Thereafter, petitioner approached the District Consumer Forum for the redressal of the grievance and the Consumer Forum passed an order Annexure P-l in favour of the petitioner.
(b) That, respondent No. 2 accepted the decision of the District Consumer Forum and has not challenged it before any higher forum. In these circumstances, petitioner was entitled for status of regular student.
(c) That, the respondent No. 2 and all the authorities namely Collector, Mandla, District Education Officer and Joint Director, Public Instructions by letters Annexures P-2, P-3 and P-5 recommended the case of the petitioner, and accepted the verdict of forum.
(d) That the petitioner though passed his higher secondary in the year 2004 but wanted to take re-admission for improvement of the division. If the status of the petitioner is changed or petitioner is not granted status of regular student then entire purpose of providing this facility by the Board will frustrated.
(e) That, respondent No. 1 Board itself has provided aforesaid scheme and because of the act of respondent No. 2, petitioner has not been granted aforesaid status. If the respondent No. 2 could have granted the aforesaid status to the petitioner then respondent No. 1 Board would not have raised any objection which was within the purview of the Regulations of the Board.
(f) That when the petitioner approached the District Consumer Forum, the dispute was between the petitioner and respondent No. 2 and the Forum decided the case in favour of the petitioner. Respondent No. 2 has not disputed the correctness of the order of the Consumer Forum and has accepted it. Respondents now can not deprive the petitioner with the fruits of the aforesaid order.
6. Learned Counsel for respondents again reiterated the same contentions and it is submitted that the decision of the District Consumer Forum is without jurisdiction and may be ignored by the respondents. Petitioner was not granted admission as a regular student and he filled up the form as a private student. Apart from this, when the order of the Consumer Forum was passed, the last date of admission of the regular students had already expired and the petitioner can not be allowed any relief in this regard.
7. To appreciate the contention of the parties, firstly it may be seen that whether under the Regulations of the Board it is permissible to admit a student as a regular student for the improvement of the division. In this regard petitioner has filed circular of the Board dated 8-6-2004 (Annexure P-7). Relevant portion of the said Circular is quoted as under :-
^^fu;fer :i ls Js.kh lq/kkj@vadlq/kkj gsrq ,sls fo|kFkhZ lfEefyr gks ldrs gS tks o'kZ 2004 esa bl eaMy lsgkbZ Ldwy ,oa gk;j lsds.Mjh ijh{kk mkh.kZ gks pqds gks A Js.kh lq/kkj vad lq/kkj;kstuk ds ukrs izos'k gsrq vkxkeh o'kZ esa dsoy ,d gh volj dk ykHk feysxk Abl ;kstuk es fo'k; ifjorZu ekU; ugha gS A vad lq/kkj gsrq lfEefyr gkssusokys ijh{kkfFkZ;ks dk ijh{kkQy U;wure nl vadksa dh o`f) gkus ij vFkok Js.khifjorZu gksus ij uohu :i ls rS;kj fd;k tkosxk rFkk uohu vad lwph iznku dh tkosxhA**
Respondent Board has not disputed the aforesaid Circular, but its contention is that respondent No. 2 has not granted permission to the petitioner as a regular student but has permitted to attend the classes. Respondent No. 2 being a school of excellence, decision of the Managing Committee in this regard is final and petitioner can not get any benefit in this regard.
8. In view of the aforesaid, it is not necessary to go into controversy whether under the Regulations of the Board, such recourse was available or not. Petitioner was entitled to get admission as a regular student for the improvement of the division as per the circular of Board. Now question arises whether the decision of the respondent No. 2 for not allowing the petitioner to appear as a regular student is justified nor not, and the decision of the Consumer Forum is binding on the respondent No. 2 or not In this regard respondent No. 2 granted permission to the petitioner to attend the classes and the petitioner was not allowed regular admission. Petitioner immediately approached the District Consumer Forum in this regard and the Consumer Forum by order dated 9-11-2004 allowed the application of the petitioner. If the respondent No. 2 was not satisfied with the aforesaid order, respondent No. 2 ought to have challenge the order before higher forum which is M.P. State Consumer Redressal Commission but such recourse was not taken by the respondent No. 2. On the contrary, the respondent No. 2 accepted the decision of the Consumer Forum and forwarded the matter to respondent No. 1 Board recommending the case of the petitioner to treat the petitioner as a regular student. Not only this, Collector, Mandla (Ex-Officio Chairman of respondent No. 2) and District Education Officer, Mandla also recommended the matter by letters Annexure P-2 and P-3 to the respondent No. 1 Board for grant of regular status to the petitioner. The Joint Director, Public Instructions by letter Annexure P-5 has also recommended to comply with the order of the District Consumer Forum. In aforesaid circumstances, respondent No. 2 and higher authorities have accepted the decision of the District Consumer Forum and not challenged it. In these circumstances, at this stage, respondent No. 2 can not be permitted to contend that the order passed by the District Consumer forum, Mandla is without jurisdiction. Even for the sake of argument it is accepted that the aforesaid order is without jurisdiction and the District consumer forum was not having jurisdiction to entertain the dispute even then when the respondent No. 2 and its higher officials have recommended that the petitioner be treated as regular student now, they are estopped from taking any contrary plea by playing with the future of a student. The Board had already permitted such regular admission for the improvement of division then respondent No. 2 ought to have granted petitioner regular admission to extend the benefit of circular Annexure P-7. Now respondent No. 2 is estopped from contending aforesaid and is bound by its subsequent act in recommending the case of the petitioner to grant him status of regular student. The Board as per Annexure P-7 has made a provision to grant admission as regular student for the improvement of the division. This is a matter of common knowledge that the division in higher secondary affects the career of a student in future being an important examination. Otherwise also, mark-sheet of higher secondary is taken into consideration to ascertain the merits of the person. In these circumstances, the Board itself has provided such facility and the respondent No. 2 while permitting the petitioner to attend the classes and not granting regular admission ought to have considered this aspect. On one hand, respondent No. 2 permitted the petitioner to attend the classes and to appear in the next examination of higher secondary for the improvement of division and on the other hand, respondent No. 2 deprived the petitioner of status of regular student. If such recourse is permitted then it will virtually deprive a regular student to appear in the examination for improvement of division and will frustrate the policy of respondent No. 1 Board to provide this facility. When the respondent No. 2 at the time of admission could have considered the prayer of the petitioner to grant regular status of the petitioner then respondent No. 1 would not have made any objection in this regard but because of initial action of the respondent No. 2, petitioner has not been granted status of regular student by respondent No. 1. At the time of filling of the form, on or before 30th September, 2004, petitioner was not entitled to appear as a regular student in the examination and only after the decision of the District Consumer Forum, petitioner became entitled for this. In these circumstances, even if the last date of submitting form had expired even then petitioner was entitled for the relief.
9. As the petitioner has already appear in the examination to improve his division, petitioner can not be deprived with the status of regular student. It is not alleged that the petitioner has not attended class to the extend of 75% then attendance can be presumed in his favour. If such relief is not granted to the petitioner, entire purpose of issuance of circular Annexure P-7 by respondent No. 1 will be frustrated. Petitioner is entitled for the benefit of the instructions of respondent No. 1 (Annexure P-7) and can not be deprived merely on the aforesaid technicality.
10. Consequently, this petition is allowed. The decision of respondent No. 1 Board Annexure P-4 is hereby quashed and the respondents are directed to treat the petitioner as a regular student and to issue mark-sheet/certificate accordingly. Looking to the peculiar facts and circumstance of the case, no order in respect of cost.